Michigan Personal Injury Practice

Front 1

Workers Compensation Analysis if… (3)

Back 1

(1) employee injured
(2) while on the job
(3) at the place of employment…

Front 2

2 Possible approaches to Workers comp Question

Back 2

(1) Worker’s comp benefits as exclusive remedy against the employer (and fellow employees)
(2) Lawsuit for tort against 3rd party who is legally responsible for the injury to the employee

Front 3

Workers Comp Statutory Standard

Back 3

The worker’s injury must “arise out of and in the course of the employment.”

Front 4

“In the course of” means

Back 4

the employee is at work, on the employer’s premises at the time of the injury.
Presumption of "in the course of" where going to or coming from work while on the premises where work is to be performed - not for activities the purpose of which is social or recreational.

Front 5

"In the course of?" - Parking lot analysis

Back 5

If: Provided by employer or On Premises
Not: Off site or 3rd party

Front 6

"In the course of?" - Traveling to and from work analysis

Back 6

(1) generally not in the course of employment
(2) exception where injuries compensable if employee is on a special mission for employer, employer paid for or provided transportation, employer derides special benefit.

Front 7

"In the course of?" - Traveling for work, as part of job

Back 7

is in the course of employment

Front 8

“Arising out of” means

Back 8

the risk of harm which caused the injury arose from the work or under the positional risk doctrine, from some neutral risk (e.g. tornado strikes building nextdoor).

Front 9

Situations where the employee is injured at work but NOT ENTITLED TO receive workers’ compensation benefits include (5):

Back 9

(1) Intentional and willful misconduct by the injured employee (2) Horseplay, when horseplay constitutes a substantial deviation from work, as compared to when horseplay is customary and compensatory. (3) Recreational and social activities (4) Imported risks (5) Idiopathic falls (strictly personal infirmity).

Front 10

Workers’ Compensation Exceptions – Sue Employer if (5)

Back 10

(1) Intentional Tort (2) Contract suit (3) Statutory Suits e.g. civil rights or Title VII (4) Uninsured Employer (5) Dual Capacity

Front 11

Intentional torts

Back 11

Employee injured as result of a deliberate act of the employer and the employer specifically intended an injury. An employer shall be deemed to have intended to injure if the employer had actual knowledge that an injury was certain to occur and willfully disregarded that knowledge. [Question of law]

Front 12

Dual capacity doctrine

Back 12

Employer acting in different role injures employee. Employer must have 2nd identity completely removed and distinct from his status as employer, e.g. Doctor treats his nurse/employee for an injury she receives at work and commits malpractice

Front 13

Workers’ Compensation Exceptions – Sue Co-Employee if (2)

Back 13

(1) The fellow employee committed an intentional tort not related to work which took the employee out of the scope of employment. NOTE: Even an intended battery by a fellow employee could be considered within the scope of employment if it arises from a job related dispute.
(2) For statutory remedies such as sexual harassment.

Front 14

Disability (definition)

Back 14

A limitation of an employee’s wage earning capacity in work suitable to his or her qualifications and training resulting from a personal injury or work related disease
Employee is unable to perform all jobs paying the maximum wage in work suitable to that employee’s qualification and training” ...including “using the employee’s transferable work skills.”

Front 15

An employee cannot refuse a bona fide offer of reasonable employment without

Back 15

good and reasonable cause

Front 16

Reasonable Employment (definition)

Back 16

Work that is within the employee’s capacity to perform that poses no clear and proximate threat to that employee’s health and safety, and that is within a reasonable distance from that employee’s residence.

Front 17

Employee contracts occupational disease and multiple employers are involved

Back 17

Total compensation due is recoverable from the last employer

Front 18

Employee if

Back 18

under contract for hire (express or implied), not just independent contractor or volunteer

Front 19

Personal Injury

Back 19

Personal Injury
Disease or disability due to cause and conditions characteristic of and peculiar to the business of the employer
NOT "Ordinary disease of life”

Front 20

Ordinary Disease of Life

Back 20

Condition public is generally exposed outside of employment
Mental disabilities or Conditions of the aging process (e.g. heart and cardiovascular conditions, degenerative arthritis)
Compensable if contributed to or aggravated or accelerated by the employment in a significant manner

Front 21

Definition of Third Party Tortfeasor

Back 21

Person who caused work related injury other than employer or coworker

Front 22

No fault system

Back 22

The injured worker does not have to prove negligence on the part of the employer or co-employee, and the defenses of contributory negligence, fellow servant, and assumption of the risk are eliminated.

Front 23

Personal Injury is Compensable if

Back 23

work causes, contributes to, or aggravates pathology in a manner so as to create a pathology that is medically distinguishable from any pathology that existed prior to the injury.

Front 24

Wage Earning Capacity (definition

Back 24

wages the employee earns or is capable of earning at a job reasonably available to that employee, whether or not wages are actually earned

Front 25

Proving “wage loss” requires

Back 25

establishing a connection between the disability and reduced wages, e.g. by demonstrating the employee’s good-faith effort to procure work within the worker’s wage earning capacity

Front 26

In exchange for the employer being responsible for paying benefits to the injured employee without regard to fault, the employee gave up

Back 26

The right to recover non-economic damages for pain and suffering and loss of enjoyment of life.

Front 27

Scheduled Injuries

Back 27

Specific losses where a disability is considered to continue for a specified period and compensation is paid for that period, regardless of whether the worker is disabled or has a wage loss, e.g. a worker who loses a thumb is entitled to 65 weeks of wage loss benefits

Front 28

Who gets Wage Loss Benefits if Death

Back 28

Dependents - Children, Spouse if actually dependent

Front 29

If a childless, unmarried worker is killed on the job leaving no dependent, the only benefits the workers’ estate receives

Back 29

Burial allowance not to exceed $6,000

Front 30

Injured worker who receive workers’ compensation benefits are only entitled to (5)

Back 30

Certain wage loss benefits, Medical treatment, Vocational Rehabilitation Benefits, Death, Scheduled Injury

Front 31

Certain wage loss benefits are capped at

Back 31

A maximum of 90% of the state average weekly wage for the previous year (generally 80% of the after tax weekly wage of the employee)

Front 32

The cost of medical treatment includes...
The care continues...

Back 32

medical, surgical, and hospital services, dental services, appliances, chiropractic treatment and nursing care.
indefinitely as long as the need for the care is related to the work related injury.

Front 33

Employee may be treated by employee’s physician after

Back 33

28 days from the start of treatment.

Front 34

Certain vocational rehabilitation benefits, usually limited to

Back 34

52 weeks